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Reform history

Adult Support and Protection (Scotland) Act 2007

11 versions · 2007-03-21

2018-01-25

Adult Support and Protection (Scotland) Act 2007

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2014-04-01

Adult Support and Protection (Scotland) Act 2007

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2012-03-31

Adult Support and Protection (Scotland) Act 2007

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2011-04-01

Adult Support and Protection (Scotland) Act 2007

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2010-10-01

Adult Support and Protection (Scotland) Act 2007

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2008-11-03

Adult Support and Protection (Scotland) Act 2007

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2008-10-29

Adult Support and Protection (Scotland) Act 2007

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2008-04-01

Adult Support and Protection (Scotland) Act 2007

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2007-10-05

Adult Support and Protection (Scotland) Act 2007

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2007-06-30

Adult Support and Protection (Scotland) Act 2007

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Changes on 2007-06-30

@@ -8,11 +8,11 @@

##### 1

The general principle on intervention in an adult’s affairs is that a person may intervene, or authorise an intervention, only if satisfied that the intervention—

- (a) will provide benefit to the adult which could not reasonably be provided without intervening in the adult’s affairs, and

- (b) is, of the range of options likely to fulfil the object of the intervention, the least restrictive to the adult’s freedom.

The general principle on intervention in an adult's affairs is that a person may intervene, or authorise an intervention, only if satisfied that the intervention—

- (a) will provide benefit to the adult which could not reasonably be provided without intervening in the adult's affairs, and

- (b) is, of the range of options likely to fulfil the object of the intervention, the least restrictive to the adult's freedom.

#### Principles for performing Part 1 functions

@@ -20,17 +20,17 @@

A public body or office-holder performing a function under this Part in relation to an adult must, if relevant, have regard to—

- (a) the general principle on intervention in an adult’s affairs,

- (b) the adult’s ascertainable wishes and feelings (past and present),

- (a) the general principle on intervention in an adult's affairs,

- (b) the adult's ascertainable wishes and feelings (past and present),

- (c) any views of—

- (i) the adult’s nearest relative,

- (i) the adult's nearest relative,

- (ii) any primary carer, guardian or attorney of the adult, and

- (iii) any other person who has an interest in the adult’s well-being or property,

- (iii) any other person who has an interest in the adult's well-being or property,

which are known to the public body or office-holder,

@@ -42,7 +42,7 @@

- (e) the importance of ensuring that the adult is not, without justification, treated less favourably than the way in which any other adult (not being an adult at risk) might be treated in a comparable situation, and

- (f) the adult’s abilities, background and characteristics (including the adult’s age, sex, sexual orientation, religious persuasion, racial origin, ethnic group and cultural and linguistic heritage).

- (f) the adult's abilities, background and characteristics (including the adult's age, sex, sexual orientation, religious persuasion, racial origin, ethnic group and cultural and linguistic heritage).

#### Adults at risk

@@ -58,7 +58,7 @@

- (2) An adult is at risk of harm for the purposes of subsection (1) if—

- (a) another person’s conduct is causing (or is likely to cause) the adult to be harmed, or

- (a) another person's conduct is causing (or is likely to cause) the adult to be harmed, or

- (b) the adult is engaging (or is likely to engage) in conduct which causes (or is likely to cause) self-harm.

@@ -68,11 +68,11 @@

##### 4

A council must make inquiries about a person’s well-being, property or financial affairs if it knows or believes—

A council must make inquiries about a person's well-being, property or financial affairs if it knows or believes—

- (a) that the person is an adult at risk, and

- (b) that it might need to intervene (by performing functions under this Part or otherwise) in order to protect the person’s well-being, property or financial affairs.

- (b) that it might need to intervene (by performing functions under this Part or otherwise) in order to protect the person's well-being, property or financial affairs.

#### Co-operation

@@ -118,7 +118,7 @@

- (2) Where this section applies, the council must have regard to the importance of the provision of appropriate services (including, in particular, independent advocacy services) to the adult concerned.

- (3) “Independent advocacy services” has the same meaning in subsection (2) as it has in section 259(1) of the Mental Health (Care and Treatment) (Scotland) Act [2003 (asp 13)](https://www.legislation.gov.uk/asp/2003/13).

- (3) “Independent advocacy services” has the same meaning in subsection (2) as it has in section 259(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

### Investigations

@@ -178,7 +178,7 @@

- (6) A requirement under subsection (1) which is transmitted by electronic means is to be treated as being in writing if it is received in legible form and capable of being used for subsequent reference.

- (7) “Health records” are records relating to an individual’s physical or mental health which have been made by or on behalf of a health professional in connection with the care of the individual.

- (7) “Health records” are records relating to an individual's physical or mental health which have been made by or on behalf of a health professional in connection with the care of the individual.

### Assessment orders

@@ -270,7 +270,7 @@

- (ii) any person who wishes to be able to have contact with the adult at risk, and

- (iii) any other person who has an interest in the adult at risk’s well-being or property.

- (iii) any other person who has an interest in the adult at risk's well-being or property.

#### Right to move adult at risk

@@ -292,13 +292,13 @@

- (a) return the adult to that place, or

- (b) take the adult to any other place which the sheriff, having regard to the adult’s wishes, may specify.

- (b) take the adult to any other place which the sheriff, having regard to the adult's wishes, may specify.

- (4) A removal order may be varied or recalled only on the application of—

- (a) the adult at risk to whom the order relates,

- (b) any person who has an interest in the adult at risk’s well-being or property, or

- (b) any person who has an interest in the adult at risk's well-being or property, or

- (c) the council.

@@ -354,7 +354,7 @@

- (b) the adult at risk,

- (c) any other person who has an interest in the adult at risk’s well-being or property, and

- (c) any other person who has an interest in the adult at risk's well-being or property, and

- (d) the subject.

@@ -374,7 +374,7 @@

- (a) that an adult at risk is being, or is likely to be, seriously harmed by another person,

- (b) that the adult at risk’s well-being or property would be better safeguarded by banning that other person from a place occupied by the adult than it would be by moving the adult from that place, and

- (b) that the adult at risk's well-being or property would be better safeguarded by banning that other person from a place occupied by the adult than it would be by moving the adult from that place, and

- (c) that either—

@@ -392,7 +392,7 @@

- (2) A temporary banning order may include any provision which may be included in a banning order.

- (3) Where a temporary banning order is granted, the sheriff must determine the related application for a banning order within such period as may be specified in rules made under section 32 of the Sheriff Courts (Scotland) Act [1971 (c. 58)](https://www.legislation.gov.uk/ukpga/1971/58).

- (4) A temporary banning order expires on the earliest of the following dates—

@@ -430,7 +430,7 @@

##### 23

The granting of a banning order or a temporary banning order does not affect any right the adult at risk has by virtue of being a non-entitled spouse to occupy a home within the place from which the subject is banned under section 1(1) of the Matrimonial Homes (Family Protection) (Scotland) Act [1981 (c. 59)](https://www.legislation.gov.uk/ukpga/1981/59).

#### Variation or recall of banning order

@@ -458,7 +458,7 @@

- (c) the adult at risk to whom the order relates,

- (d) any other person who has an interest in the adult at risk’s well-being or property.

- (d) any other person who has an interest in the adult at risk's well-being or property.

#### Powers of arrest

@@ -492,7 +492,7 @@

- (a) the adult whose well-being or property is safeguarded by the order, and

- (b) any other person with an interest in that adult’s well-being or property as the sheriff may specify.

- (b) any other person with an interest in that adult's well-being or property as the sheriff may specify.

- (3) The document which is to be delivered under subsection (2) is a copy of—

@@ -520,7 +520,7 @@

- (b) such other documents as may be prescribed.

- (3) In this section, “chief constable” means the chief constable of the police force maintained for the area in which the place specified in the order concerned is situated.

- (3) In this section, “*chief constable*” means the chief constable of the police force maintained for the area in which the place specified in the order concerned is situated.

#### Arrest for breach of banning order

@@ -562,7 +562,7 @@

- (ii) one other person reasonably named by the person,

- (b) the right to have, on request, intimation given to a solicitor that the solicitor’s professional assistance is required,

- (b) the right to have, on request, intimation given to a solicitor that the solicitor's professional assistance is required,

- (c) the right to have, on request, the solicitor informed, as soon as the information is available, of the court to which the person is to be taken and the date when that is to happen, and

@@ -616,7 +616,7 @@

Where a person is brought before the sheriff under section 32, the fiscal must present to the sheriff a petition—

- (a) giving the detained person’s particulars,

- (a) giving the detained person's particulars,

- (b) stating the facts and circumstances which gave rise to the arrest,

@@ -658,7 +658,7 @@

- (a) that the affected adult at risk has been unduly pressurised to refuse consent, and

- (b) that there are no steps which could reasonably be taken with the adult’s consent which would protect the adult from the harm which the order or action is intended to prevent.

- (b) that there are no steps which could reasonably be taken with the adult's consent which would protect the adult from the harm which the order or action is intended to prevent.

- (4) An adult at risk may be considered to have been unduly pressurised to refuse to consent to the granting of an order or the taking of an action if it appears—

@@ -674,7 +674,7 @@

- (b) a medical examination.

- (7) In this section, a “protection order” means any—

- (7) In this section, a “*protection order*” means any—

- (a) assessment order,

@@ -684,7 +684,7 @@

- (d) temporary banning order,

and “affected adult at risk”, in relation to a protection order, means the person whose well-being or property would be safeguarded by the granting, carrying out or enforcement of the order.

and “*affected adult at risk*”, in relation to a protection order, means the person whose well-being or property would be safeguarded by the granting, carrying out or enforcement of the order.

#### Visits: supplementary provisions

@@ -696,7 +696,7 @@

- (a) state the object of the visit, and

- (b) produce evidence of the officer’s authorisation to visit the place.

- (b) produce evidence of the officer's authorisation to visit the place.

- (3) A council officer may, while visiting any place—

@@ -848,7 +848,7 @@

- (7) Such an appointment may be made on such terms as the sheriff thinks fit.

- (8) Nothing in this section affects the Court of Session’s power to make further provision under section 32 of the Sheriff Courts (Scotland) Act [1971 (c. 58)](https://www.legislation.gov.uk/ukpga/1971/58) in connection with the procedure and practice to be followed in connection with an application.

- (8) Nothing in this section affects the Court of Session's power to make further provision under section 32 of the Sheriff Courts (Scotland) Act 1971 (c. 58) in connection with the procedure and practice to be followed in connection with an application.

- (9) For the purposes of this section, the “affected adult at risk” is—

@@ -864,15 +864,15 @@

- (1) Each council must establish a committee (an “Adult Protection Committee”) with the following functions—

- (a) to keep under review the procedures and practices of the public bodies and office-holders to which this section applies which relate to the safeguarding of adults at risk present in the council’s area (including, in particular, any such procedures and practices which involve co-operation between the council and other public bodies or office-holders to which this section applies),

- (b) to give information or advice, or make proposals, to any public body and office-holder to which this section applies on the exercise of functions which relate to the safeguarding of adults at risk present in the council’s area,

- (c) to make, or assist in or encourage the making of, arrangements for improving the skills and knowledge of officers or employees of the public bodies and office-holders to which this section applies who have responsibilities relating to the safeguarding of adults at risk present in the council’s area,

- (a) to keep under review the procedures and practices of the public bodies and office-holders to which this section applies which relate to the safeguarding of adults at risk present in the council's area (including, in particular, any such procedures and practices which involve co-operation between the council and other public bodies or office-holders to which this section applies),

- (d) any other function relating to the safeguarding of adults at risk as the Scottish Ministers may by order specify.

- (2) In performing its functions, an Adult Protection Committee must have regard to the desirability of improving co-operation between each of the public bodies and office-holders to which this section applies for the purpose of assisting those bodies and office-holders to perform functions in order to safeguard adults at risk present in the council’s area.

- (3) The public bodies and office-holders to which this section applies are—

@@ -882,7 +882,7 @@

- (c) the relevant Health Board,

- (d) the chief constable of the police force maintained in the council’s area,

- (d) the chief constable of the police force maintained in the council's area,

- (e) any other public body or office-holder as the Scottish Ministers may by order specify.

@@ -924,7 +924,7 @@

##### 45

- (1) Each of the public bodies and office-holders set out in subsection (2) must provide the Adult Protection Committee with any information which the Committee may reasonably require for the purposes of performing the Committee’s functions.

- (2) Those public bodies and office-holders are—

@@ -944,9 +944,9 @@

The convener of an Adult Protection Committee must, as soon as practical after such date as the council may direct biennially—

- (a) prepare a general report on the exercise of the Committee’s functions during the 2 years ending on that date, and

- (b) after securing the Committee’s approval of the report, send a copy of it to—

- (a) prepare a general report on the exercise of the Committee's functions during the 2 years ending on that date, and

- (b) after securing the Committee's approval of the report, send a copy of it to—

- (i) each of the public bodies and office-holders represented on the Adult Protection Committee by virtue of section 43(4),

@@ -1046,7 +1046,7 @@

that person as well as the body corporate, partnership or, as the case may be, unincorporated association is guilty of the offence and is liable to be proceeded against and punished accordingly.

- (2) In subsection (1), “relevant person” means—

- (2) In subsection (1), “*relevant person*” means—

- (a) in relation to a body corporate other than a council—

@@ -1076,11 +1076,11 @@

But an appeal under this subsection against the granting of, or a refusal to grant, a temporary banning order is competent only with leave of the sheriff.

- (3) The sheriff principal’s decision on an appeal under subsection (2) may be appealed to the Court of Session.

- (3) The sheriff principal's decision on an appeal under subsection (2) may be appealed to the Court of Session.

But an appeal under this subsection against a decision relating to a temporary banning order is competent only with leave of the sheriff principal.

- (4) Where a sheriff principal decides to quash a banning order or temporary banning order, the order concerned is (despite the sheriff principal’s determination) to continue to have effect until—

- (4) Where a sheriff principal decides to quash a banning order or temporary banning order, the order concerned is (despite the sheriff principal's determination) to continue to have effect until—

- (a) the end of the period during which the decision to quash the order may be appealed to the Court of Session (if no such appeal is made),

@@ -1088,7 +1088,7 @@

- (i) the appeal is abandoned, or

- (ii) the Court of Session confirms the sheriff principal’s decision to quash the order, or

- (ii) the Court of Session confirms the sheriff principal's decision to quash the order, or

- (c) any other day on which—

@@ -1118,63 +1118,63 @@

- (1) In this Part—

- “adult” means an individual aged 16 or over,

- “adult at risk” has the meaning given by section 3,

- “Adult Protection Committee” means a committee established under section 42,

- “assessment order” has the meaning given by section 11,

- “attorney” means a continuing attorney or welfare attorney (within the meaning of the Adults with Incapacity (Scotland) Act [2000 (asp 4)](https://www.legislation.gov.uk/asp/2000/4)),

- “banning order” has the meaning given by section 19,

- “Care Commission” means the Scottish Commission for the Regulation of Care,

- “child” means an individual under the age of 16,

- “conduct” includes neglect and other failures to act,

- “council” means a council constituted under section 2 of the Local Government etc. (Scotland) Act [1994 (c. 39)](https://www.legislation.gov.uk/ukpga/1994/39); and references to a council in relation to any person known or believed to be an adult at risk are references to the council for the area which the person is for the time being in,

- “council officer” means an individual appointed by a council under section 64 of the Local Government (Scotland) Act [1973 (c. 65)](https://www.legislation.gov.uk/ukpga/1973/65) (but “council officer” must, where relevant, also be interpreted in accordance with any order made under section 52(1)),

- “court day” means a day which is not— a Saturday, a Sunday, or a court holiday prescribed for the relevant court under section 8 of the Criminal Procedure (Scotland) Act [1995 (c. 46)](https://www.legislation.gov.uk/ukpga/1995/46),

- “doctor” means a fully registered person within the meaning of the Medical Act [1983 (c. 54)](https://www.legislation.gov.uk/ukpga/1983/54),

- “fiscal” means the procurator fiscal,

- “harm” includes all harmful conduct and, in particular, includes— conduct which causes physical harm, conduct which causes psychological harm (for example: by causing fear, alarm or distress), unlawful conduct which appropriates or adversely affects property, rights or interests (for example: theft, fraud, embezzlement or extortion), conduct which causes self-harm,

- “health professional” has the meaning given by section 52(2),

- “midwife” means an individual registered in the register maintained under article 5 of the Nurses and Midwives Order 2001 ([S.I. 2002/253](https://www.legislation.gov.uk/uksi/2002/253)) by virtue of qualifications in midwifery,

- “nearest relative” has the meaning given by section 254 of the Mental Health (Care and Treatment) (Scotland) Act [2003 (asp 13)](https://www.legislation.gov.uk/asp/2003/13),

- “nurse” means an individual registered in the register maintained under article 5 of the Nurses and Midwives Order 2001 ([S.I. 2002/253](https://www.legislation.gov.uk/uksi/2002/253)) by virtue of qualifications in nursing,

- “officer in charge” has the meaning given by section 29(1)

- “parental responsibilities and rights” has the same meaning as in the Children (Scotland) Act [1995 (c. 36)](https://www.legislation.gov.uk/ukpga/1995/36),

- “prescribed” means prescribed by rules of court,

- “primary carer” has the same meaning as in the Mental Health (Care and Treatment) (Scotland) Act [2003 (asp 13)](https://www.legislation.gov.uk/asp/2003/13),

- “relevant Health Board”, in relation to any council, means any Health Board or Special Health Board constituted by order under section 2 of the National Health Service (Scotland) Act [1978 (c. 29)](https://www.legislation.gov.uk/ukpga/1978/29) which exercises functions in relation to the council’s area,

- “removal order” has the meaning given by section 14,

- “specified”, in relation to any order or warrant, means specified in the order or warrant,

- “temporary banning order” has the meaning given by section 21,

- “visit” has the meaning given by subsection (2),

- “warrant for entry” has the meaning given by section 37.

- “*adult*” means an individual aged 16 or over,

- “*adult at risk*” has the meaning given by section 3,

- “*Adult Protection Committee*” means a committee established under section 42,

- “*assessment order*” has the meaning given by section 11,

- “*attorney*” means a continuing attorney or welfare attorney (within the meaning of the Adults with Incapacity (Scotland) Act 2000 (asp 4)),

- “*banning order*” has the meaning given by section 19,

- “*Care Commission*” means the Scottish Commission for the Regulation of Care,

- “*child*” means an individual under the age of 16,

- “*conduct*” includes neglect and other failures to act,

- “*council*” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 (c. 39); and references to a council in relation to any person known or believed to be an adult at risk are references to the council for the area which the person is for the time being in,

- “*council officer*” means an individual appointed by a council under section 64 of the Local Government (Scotland) Act 1973 (c. 65) (but “council officer” must, where relevant, also be interpreted in accordance with any order made under section 52(1)),

- “*court day*” means a day which is not—a Saturday,a Sunday, ora court holiday prescribed for the relevant court under section 8 of the Criminal Procedure (Scotland) Act 1995 (c. 46),

- “*doctor*” means a fully registered person within the meaning of the Medical Act 1983 (c. 54),

- “*fiscal*” means the procurator fiscal,

- “*harm*” includes all harmful conduct and, in particular, includes—conduct which causes physical harm,conduct which causes psychological harm (for example: by causing fear, alarm or distress),unlawful conduct which appropriates or adversely affects property, rights or interests (for example: theft, fraud, embezzlement or extortion),conduct which causes self-harm,

- “*health professional*” has the meaning given by section 52(2),

- “*midwife*” means an individual registered in the register maintained under article 5 of the Nurses and Midwives Order 2001 (S.I. 2002/253) by virtue of qualifications in midwifery,

- “*nearest relative*” has the meaning given by section 254 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13),

- “*nurse*” means an individual registered in the register maintained under article 5 of the Nurses and Midwives Order 2001 (S.I. 2002/253) by virtue of qualifications in nursing,

- “*officer in charge*” has the meaning given by section 29(1)

- “*parental responsibilities and rights*” has the same meaning as in the Children (Scotland) Act 1995 (c. 36),

- “*prescribed*” means prescribed by rules of court,

- “*primary carer*” has the same meaning as in the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13),

- “*relevant Health Board*”, in relation to any council, means any Health Board or Special Health Board constituted by order under section 2 of the National Health Service (Scotland) Act 1978 (c. 29) which exercises functions in relation to the council's area,

- “*removal order*” has the meaning given by section 14,

- “*specified*”, in relation to any order or warrant, means specified in the order or warrant,

- “*temporary banning order*” has the meaning given by section 21,

- “*visit*” has the meaning given by subsection (2),

- “*warrant for entry*” has the meaning given by section 37.

- (2) References in this Part to visiting any place are, unless the contrary intention appears, to be read as references to a council officer exercising a right of entry conferred by section 7, 16 or 18 (including any such right which is authorised by a warrant for entry).

@@ -1184,7 +1184,7 @@

##### 54

References in this Part to “the 2000 Act” are references to the Adults with Incapacity (Scotland) Act [2000 (asp 4)](https://www.legislation.gov.uk/asp/2000/4).

References in this Part to “the 2000 Act” are references to the Adults with Incapacity (Scotland) Act 2000 (asp 4).

#### Applications and proceedings: sheriff to consider adult’s wishes and feelings

@@ -1193,7 +1193,7 @@

After section 3(5) of the 2000 Act insert—

> (5A) In determining an application or any other proceedings under this Act, the sheriff shall, without prejudice to the generality of section 1(4)(a), take account of the wishes and feelings of the adult who is the subject of the application or proceedings so far as they are expressed by a person providing independent advocacy services.

> (5B) In subsection (5A), “independent advocacy services” has the same meaning as it has in section 259(1) of the Mental Health (Care and Treatment) (Scotland) Act [2003 (asp 13)](https://www.legislation.gov.uk/asp/2003/13).

> (5B) In subsection (5A), “*independent advocacy services*” has the same meaning as it has in section 259(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

@@ -1207,9 +1207,9 @@

- (a) the words “On an application by an adult,” are repealed,

- (b) for “the adult”, where first occurring, substitute “an adult with incapacity”,

- (c) in paragraph (b), for “application” substitute “order”.

- (b) for “the adult”, where first occurring, substitute “ an adult with incapacity ”,

- (c) in paragraph (b), for “application” substitute “ order ”.

- (3) In subsection (3), the words “, on an application by an adult,” are repealed.

@@ -1217,7 +1217,7 @@

> (3A) The court may make an order under subsection (1) or (3) only on the application of—

> (a) the adult to whom the application relates; or

> (b) any person claiming an interest in that adult’s property, financial affairs or personal welfare.

> (b) any person claiming an interest in that adult's property, financial affairs or personal welfare.

> (3B) The court may dispose of an application for an order under subsection (1) or (3) by making—

> (a) the order applied for; or

> (b) such other order under this section as it thinks fit.

@@ -1240,17 +1240,17 @@

- (b) in subsection (3)(c)—

- (i) leave out “a solicitor” and insert “a practising solicitor”,

- (ii) in sub-paragraph (ii), for “other persons” substitute “another person”,

- (iii) in sub-paragraph (ii), for “have” substitute “has”,

- (c) in subsection (4), for “A solicitor” substitute “A practising solicitor”,

- (i) leave out “a solicitor” and insert “ a practising solicitor ”,

- (ii) in sub-paragraph (ii), for “other persons” substitute “ another person ”,

- (iii) in sub-paragraph (ii), for “have” substitute “ has ”,

- (c) in subsection (4), for “A solicitor” substitute “ A practising solicitor ”,

- (d) after subsection (4) insert—

> (5) It is declared that the rule of law which provides that an agent’s authority ends in the event of the bankruptcy of the principal or the agent applies, and has applied since subsection (1) came into force, in relation to continuing powers of attorney.

> (5) It is declared that the rule of law which provides that an agent's authority ends in the event of the bankruptcy of the principal or the agent applies, and has applied since subsection (1) came into force, in relation to continuing powers of attorney.

@@ -1264,15 +1264,15 @@

- (b) in subsection (3)(c)—

- (i) leave out “a solicitor” and insert “a practising solicitor”,

- (ii) in sub-paragraph (ii), for “other persons” substitute “another person”,

- (iii) in sub-paragraph (ii), for “have” substitute “has”,

- (c) in subsection (4), for “A solicitor” substitute “A practising solicitor”,

- (d) in subsection (6)(b), for “mentioned in section 48(1) or (2)” substitute “in relation to which the authority conferred by section 47(2) does not apply by virtue of regulations made under section 48(2)”.

- (i) leave out “a solicitor” and insert “ a practising solicitor ”,

- (ii) in sub-paragraph (ii), for “other persons” substitute “ another person ”,

- (iii) in sub-paragraph (ii), for “have” substitute “ has ”,

- (c) in subsection (4), for “A solicitor” substitute “ A practising solicitor ”,

- (d) in subsection (6)(b), for “mentioned in section 48(1) or (2)” substitute “ in relation to which the authority conferred by section 47(2) does not apply by virtue of regulations made under section 48(2) ”.

- (3) After section 16 of the 2000 Act insert—

@@ -1285,7 +1285,7 @@

- (4) Section 19 (registration of powers of attorney) of the 2000 Act is amended as follows—

- (a) in subsection (2)(c), for “send a copy of it to” substitute “give notice of the registration of the document to both the local authority and”,

- (a) in subsection (2)(c), for “send a copy of it to” substitute “ give notice of the registration of the document to both the local authority and ”,

- (b) in subsection (5)—

@@ -1298,7 +1298,7 @@

- (5) In section 20(3)(b)(iii) (notice of order: supervision etc) of the 2000 Act, the words from “(in” to “disorder)” are repealed.

- (5) In section 20(3)(b)(iii)(notice of order: supervision etc) of the 2000 Act, the words from “(in” to “disorder)” are repealed.

- (6) In section 22 (notice of changes) of the 2000 Act, the words “(in a case where the incapacity of the granter is by reason of, or reasons which include, mental disorder)”, where they occur in subsections (1) and (2), are repealed.

@@ -1322,11 +1322,11 @@

- (8) In section 23(3) (notice of resignation) of the 2000 Act, the words from “(in” to “disorder)” are repealed.

- (8) In section 23(3)(notice of resignation) of the 2000 Act, the words from “(in” to “disorder)” are repealed.

- (9) In section 87(1) (interpretation) of the 2000 Act, after the definition of “power of attorney” insert—

> “practising solicitor” means a solicitor holding a practising certificate issued in accordance with Part 2 of the Solicitors (Scotland) Act [1980 (c. 46)](https://www.legislation.gov.uk/ukpga/1980/46);

> “*practising solicitor*” means a solicitor holding a practising certificate issued in accordance with Part 2 of the Solicitors (Scotland) Act 1980 (c. 46);

@@ -1345,14 +1345,14 @@

> (d) the settlement of debts owed by or incurred in respect of the adult, including any prescribed fees charged by the Public Guardian in connection with an application under this Part;

> (e) the payment for the provision of items other than those mentioned in paragraphs (a) to (d) such as the Public Guardian may, in any case, authorise.

> (24B)

> (1) An application to the Public Guardian under this Part may be made only in relation to an adult who is incapable in relation to decisions about, or of safeguarding the adult’s interests in, the funds to which the application relates.

> (1) An application to the Public Guardian under this Part may be made only in relation to an adult who is incapable in relation to decisions about, or of safeguarding the adult's interests in, the funds to which the application relates.

> (2) But an application may not be made in the case of an adult in relation to whom—

> (a) there is a guardian of the type mentioned in section 33(1)(a) with powers relating to the funds in question;

> (b) there is a continuing attorney with powers relating to the funds in question; or

> (c) an intervention order relating to the funds in question has been granted.

> (24C)

> (1) This section applies where a person—

> (a) believes than an adult holds funds in an account in the adult’s sole name; but

> (a) believes than an adult holds funds in an account in the adult's sole name; but

> (b) cannot make an application under section 25 or section 26G because the person does not know—

> (i) where the account is held;

> (ii) the account details;

@@ -1370,15 +1370,15 @@

> (i) an adult holds funds;

> (ii) an adult is entitled to income or other payments or is likely to become so entitled; or

> (iii) a fundholder holds funds on behalf of an adult; but

> (b) the adult does not have a suitable account in the adult’s sole name in which the funds, income or other payments can be placed for the purposes of intromitting with the adult’s funds under this Part.

> (2) Where this section applies, the person may apply to the Public Guardian for a certificate authorising the opening of an account in the adult’s name for the purpose of intromitting with the adult’s funds.

> (b) the adult does not have a suitable account in the adult's sole name in which the funds, income or other payments can be placed for the purposes of intromitting with the adult's funds under this Part.

> (2) Where this section applies, the person may apply to the Public Guardian for a certificate authorising the opening of an account in the adult's name for the purpose of intromitting with the adult's funds.

> (3) Where the Public Guardian grants an application under subsection (2), the Public Guardian must issue the certificate to the applicant.

> (4) The certificate issued under subsection (3) may specify the kind of account which may be opened by a fundholder.

> (5) A fundholder presented with a certificate issued under subsection (3) may open an account in the adult’s name.

> (5) A fundholder presented with a certificate issued under subsection (3) may open an account in the adult's name.

> (6) But, if the certificate specifies a kind of account, the fundholder may open only an account of the type specified.

> (7) On an account being opened in pursuance of subsection (5), the applicant must notify prescribed particulars of the account to the Public Guardian.

> (25)

> (1) A person mentioned in subsection (2) may apply to the Public Guardian for a certificate authorising the person to intromit with an adult’s funds.

> (1) A person mentioned in subsection (2) may apply to the Public Guardian for a certificate authorising the person to intromit with an adult's funds.

> (2) Those persons are—

> (a) an individual (other than an individual acting in his capacity as an officer of a local authority or other body established by or under an enactment);

> (b) two or more individuals who wish to act jointly; or

@@ -1390,34 +1390,34 @@

> (a) enter prescribed particulars in the register maintained by the Public Guardian under section 6(2)(b)(iii); and

> (b) issue a certificate of authority (a “withdrawal certificate”) to the applicant.

> (5) No application may be made under subsection (1) if a person is already authorised to intromit with the funds of the adult to whom the application relates (unless the application is made by that person).

> (6) In this Act, an individual or a body who holds a valid withdrawal certificate issued under this Part is referred to as a “withdrawer”.

> (6) In this Act, an individual or a body who holds a valid withdrawal certificate issued under this Part is referred to as a “*withdrawer*”.

> (26)

> (1) An application under section 25(1) must—

> (a) state the purposes of the proposed intromission with the adult’s funds, setting out the specific sums relating to each purpose;

> (b) specify an account held by a fundholder in the adult’s sole name which the applicant wishes to use for the purpose of intromitting with the adult’s funds (or be accompanied by an application under section 24D to open an account for that purpose);

> (a) state the purposes of the proposed intromission with the adult's funds, setting out the specific sums relating to each purpose;

> (b) specify an account held by a fundholder in the adult's sole name which the applicant wishes to use for the purpose of intromitting with the adult's funds (or be accompanied by an application under section 24D to open an account for that purpose);

> (c) contain an undertaking that the applicant will open an account (the “designated account”) solely for the purposes of—

> (i) receiving funds transferred under the authority of any certificate granted; and

> (ii) intromitting with those funds;

> (2) The application may also specify another account held by a fundholder in the adult’s sole name which the applicant also wishes to use for the purpose of intromitting with the adult’s funds (or be accompanied by an application under section 24D to open an account for that purpose).

> (2) The application may also specify another account held by a fundholder in the adult's sole name which the applicant also wishes to use for the purpose of intromitting with the adult's funds (or be accompanied by an application under section 24D to open an account for that purpose).

> (3) In this Part—

> (a) the account specified or, as the case may be, opened for the purposes of subsection (1)(b) is referred to as the adult’s current account.

> (b) the account specified or, as the case may be, opened for the purposes of subsection (2) is referred to as the adult’s second account.

> (a) the account specified or, as the case may be, opened for the purposes of subsection (1)(b) is referred to as the adult's current account.

> (b) the account specified or, as the case may be, opened for the purposes of subsection (2) is referred to as the adult's second account.

> (26A)

> (1) A withdrawal certificate may—

> (a) authorise the transfer of funds—

> (i) from the adult’s current account to the designated account;

> (ii) from the adult’s current account to the adult’s second account;

> (iii) from the designated account to the adult’s second account;

> (b) authorise the continuance or making of arrangements for the regular or occasional payment of funds from the adult’s current account for specified purposes (for example: by standing order or direct debit);

> (i) from the adult's current account to the designated account;

> (ii) from the adult's current account to the adult's second account;

> (iii) from the designated account to the adult's second account;

> (b) authorise the continuance or making of arrangements for the regular or occasional payment of funds from the adult's current account for specified purposes (for example: by standing order or direct debit);

> (c) authorise the withdrawal of funds from the designated account for specified purposes;

> (d) place limits on the amount of funds that may be so transferred, paid or withdrawn.

> (2) But such a certificate does not authorise a transfer of funds or payment that would cause—

> (a) the adult’s current account;

> (b) the adult’s second account; or

> (a) the adult's current account;

> (b) the adult's second account; or

> (c) the designated account,

> to become overdrawn.

> (3) If any of the accounts mentioned in paragraphs (a) to (c) of subsection (2) is overdrawn, the fundholder of that account has a right of relief against the withdrawer.

> (4) In subsection (1)(b), “specified” means specified in the certificate of appointment.

> (4) In subsection (1)(b), “*specified*” means specified in the certificate of appointment.

> (26B)

> (1) This section applies where an individual has or individuals have been appointed as a withdrawer in relation to an adult.

> (2) Where this sections applies, another individual may apply to the Public Guardian for appointment as a joint withdrawer.

@@ -1425,13 +1425,13 @@

> (4) Where the Public Guardian grants an application under subsection (1), the Public Guardian must—

> (a) enter prescribed particulars in the register maintained by the Public Guardian under section 6(2)(b)(iii); and

> (b) issue a certificate of authority (a “withdrawal certificate”) to the existing withdrawer and the applicant.

> (5) Subject to sections 31(2) and 31A, a certificate issued under subsection (4)(b) is valid until the date on which the withdrawal certificate held by the existing withdrawer would cease to be valid under section 31(1) or 31E(6), as the case may be (regardless of any subsequent extension, reduction, termination or suspension of the existing withdrawer’s authority).

> (6) In this section, “the existing withdrawer” means the individual or individuals mentioned in subsection (1).

> (7) In this Part, where two or more individuals are appointed as withdrawers, each individual is referred to as a “joint withdrawer”.

> (6) In this section, “*the existing withdrawer*” means the individual or individuals mentioned in subsection (1).

> (7) In this Part, where two or more individuals are appointed as withdrawers, each individual is referred to as a “*joint withdrawer*”.

> (26C)

> (1) Joint withdrawers may, subject to subsection (2), exercise their functions individually, and each joint withdrawer is liable for any loss incurred by the adult arising out of—

> (a) the joint withdrawer’s own acts or omissions; or

> (b) the joint withdrawer’s failure to take reasonable steps to ensure that another joint withdrawer does not breach any duty of care or fiduciary duty owed to the adult.

> (a) the joint withdrawer's own acts or omissions; or

> (b) the joint withdrawer's failure to take reasonable steps to ensure that another joint withdrawer does not breach any duty of care or fiduciary duty owed to the adult.

> (2) Where more than one joint withdrawer is liable under subsection (1), they are liable jointly and severally.

> (3) A joint withdrawer must, before exercising any function conferred on the joint withdrawer, consult the other joint withdrawers, unless—

> (a) consultation would be impracticable in the circumstances; or

@@ -1449,12 +1449,12 @@

> (26E)

> (1) Where—

> (a) a reserve withdrawer has been appointed under section 26D; and

> (b) the main withdrawer considers that the main withdrawer is or will be unable to carry out some or all of the main withdrawer’s functions under this Part,

> the main withdrawer may notify the Public Guardian that the main withdrawer wishes the Public Guardian to authorise the reserve withdrawer to intromit with the adult’s funds for a specified period.

> (b) the main withdrawer considers that the main withdrawer is or will be unable to carry out some or all of the main withdrawer's functions under this Part,

> the main withdrawer may notify the Public Guardian that the main withdrawer wishes the Public Guardian to authorise the reserve withdrawer to intromit with the adult's funds for a specified period.

> (2) Where a reserve withdrawer becomes aware that the main withdrawer is unable—

> (a) to carry out some or all of the main withdrawer’s functions in relation to intromitting with the funds concerned; and

> (a) to carry out some or all of the main withdrawer's functions in relation to intromitting with the funds concerned; and

> (b) to notify the Public Guardian under subsection (1),

> the reserve withdrawer may apply to the Public Guardian for a certificate authorising the reserve withdrawer to intromit with the adult’s funds for a specified period.

> the reserve withdrawer may apply to the Public Guardian for a certificate authorising the reserve withdrawer to intromit with the adult's funds for a specified period.

> (3) The Public Guardian, on being notified under subsection (1), must or, on an application under subsection (2), may—

> (a) enter prescribed particulars in the register maintained by him under section 6(2)(b)(iii);

> (b) issue a certificate of authority (a “withdrawal certificate”) to the reserve withdrawer; and

@@ -1463,8 +1463,8 @@

> (a) valid for the specified period, or such shorter period as the Public Guardian thinks fit, but does not extend beyond the date on which the validity of the withdrawal certificate issued to the main withdrawer would cease under section 31(1) or 31E(6), as the case may be;

> (b) suspended during any period when the authority of the main withdrawer is suspended;

> (c) terminated if the authority of the main withdrawer is terminated.

> (5) The main withdrawer and the reserve withdrawer are liable (jointly and severally) for any loss incurred by the adult arising out of the reserve withdrawer’s acts or omissions.

> (6) In this section, “specified” means specified in the notice or, as the case may be, application.

> (5) The main withdrawer and the reserve withdrawer are liable (jointly and severally) for any loss incurred by the adult arising out of the reserve withdrawer's acts or omissions.

> (6) In this section, “*specified*” means specified in the notice or, as the case may be, application.

> (26F)

> (1) The Public Guardian may—

> (a) on the application of a withdrawer, or

@@ -1476,10 +1476,10 @@

> (b) issue a varied withdrawal certificate to the withdrawer.

> (4) The existing certificate ceases to be valid on the date the varied certificate is issued under subsection (3)(b).

> (26G)

> (1) A person mentioned in subsection (2) may apply to the Public Guardian for a certificate authorising the transfer of a specified sum from a specified account (“the original account”) in an adult’s sole name to—

> (a) the designated account;

> (b) the adult’s current account;

> (c) the adult’s second account; or

> (b) the adult's current account;

> (c) the adult's second account; or

> (d) such other account as may be specified.

> (2) Those persons are—

> (a) a withdrawer;

@@ -1490,7 +1490,7 @@

> (4) Where the Public Guardian grants an application under subsection (1), the Public Guardian must—

> (a) enter prescribed particulars in the register maintained by the Public Guardian under section 6(2)(b)(iii); and

> (b) issue the certificate to the applicant.

> (5) In this section, “specified” means specified in the application under subsection (1) or, as the case may be, in the certificate granted under subsection (4).

> (5) In this section, “*specified*” means specified in the application under subsection (1) or, as the case may be, in the certificate granted under subsection (4).

> (27) An application under section 24C, 24D, 25, 26B, 26D, 26F or 26G must—

> (a) be signed by the applicant;

> (b) contain the name and addresses of the nearest relative, named person and primary carer of the adult, if known;

@@ -1509,19 +1509,19 @@

> (vi) a welfare or continuing attorney of the adult;

> (vii) a person who is authorised under an intervention order in relation to the adult;

> (c) the person believes the information contained in the application to be true; and

> (d) the person believes the applicant to be a fit and proper person to intromit with the adult’s funds.

> (d) the person believes the applicant to be a fit and proper person to intromit with the adult's funds.

> (2) An application under section 26D (reserve withdrawers) must be countersigned by a person who must declare in the application the matters set out in paragraphs (a) to (d) of subsection (1) but with references in those paragraphs to “applicant” read as references to the proposed reserve withdrawer.

> (3) This section does not apply to an application made by a body.

> (27B) An application under section 24C, 24D, or 25 must be accompanied by a certificate in prescribed form from a medical practitioner that the adult is—

> (a) incapable in relation to decisions about; or

> (b) incapable of acting to safeguard or promote the adult’s interests in,

> the adult’s funds.

> (b) incapable of acting to safeguard or promote the adult's interests in,

> the adult's funds.

> (27C)

> (1) On receipt of a competent application under section 24C, 24D, 25, 26B, 26D, 26F or 26G, the Public Guardian must intimate the application to—

> (a) the adult;

> (b) the adult’s nearest relative;

> (c) the adult’s primary carer;

> (d) the adult’s named person;

> (b) the adult's nearest relative;

> (c) the adult's primary carer;

> (d) the adult's named person;

> (e) where the applicant is—

> (i) the individual mentioned in both paragraph (b) and (c); or

> (ii) a body other than a local authority,

@@ -1543,36 +1543,36 @@

> (a) the Public Guardian;

> (b) the applicant; or

> (c) any person who objects to the granting of the application.

> (2) The sheriff’s decision on an application remitted under subsection (1) is final.

> (2) The sheriff's decision on an application remitted under subsection (1) is final.

> (27G)

> (1) Where a person who has made an application under section 24C, 24D or 25 in respect of an adult makes another application under any of those sections in respect of the same adult, the Public Guardian may disapply any of the provisions in sections 27 to 27B to that application.

> (2) Where the Public Guardian is to issue more than one certificate under this Part to the same person, the Public Guardian may instead issue a combined certificate to the person.

> (3) References in this Part to a withdrawal certificate or other certificate issued under this Part include references to any combined certificate issued by the Public Guardian instead of the withdrawal or other certificate.

> (28)

> (1) The fundholder of an adult’s current account may act on the instructions of a withdrawer to the extent authorised by the withdrawal certificate issued to the withdrawer.

> (2) The fundholder of an adult’s current account presented with a withdrawal certificate must not allow any operations to be carried out on that account other than those carried out in accordance with the certificate by the withdrawer.

> (3) The fundholder of an adult’s current account or an adult’s second account presented with a withdrawal certificate may provide the withdrawer with a copy of any statement or other correspondence issued by the fundholder to the adult during the period when the withdrawal certificate is valid.

> (1) The fundholder of an adult's current account may act on the instructions of a withdrawer to the extent authorised by the withdrawal certificate issued to the withdrawer.

> (2) The fundholder of an adult's current account presented with a withdrawal certificate must not allow any operations to be carried out on that account other than those carried out in accordance with the certificate by the withdrawer.

> (3) The fundholder of an adult's current account or an adult's second account presented with a withdrawal certificate may provide the withdrawer with a copy of any statement or other correspondence issued by the fundholder to the adult during the period when the withdrawal certificate is valid.

> (28A) The fundholder of an original account may act on the instructions of a withdrawer to the extent authorised by the certificate issued to the withdrawer under section 26G(4).

> (29) The fundholder of an account mentioned in section 28 or 28A is liable to the adult for any funds removed from the account under that section at any time when it was aware that the withdrawer’s authority had been terminated or suspended by the Public Guardian under section 31A but, on meeting such liability, the fundholder of the account has a right of relief against the withdrawer.

> (29) The fundholder of an account mentioned in section 28 or 28A is liable to the adult for any funds removed from the account under that section at any time when it was aware that the withdrawer's authority had been terminated or suspended by the Public Guardian under section 31A but, on meeting such liability, the fundholder of the account has a right of relief against the withdrawer.

> (30)

> (1) Any funds used by the withdrawer must be applied only for the benefit of the adult.

> (2) Despite subsection (1), where the withdrawer lives with the adult, the withdrawer may, to the extent authorised by the certificate, apply any funds withdrawn towards household expenses.

> (30A)

> (1) A withdrawer must notify the Public Guardian—

> (a) of any change in the withdrawer’s address; and

> (a) of any change in the withdrawer's address; and

> (b) of any change in the address of the adult.

> (2) A notice under subsection (1) must be given within 7 days of the date of the change to which it relates.

> (30B)

> (1) A withdrawer must keep records of the exercise of the withdrawer’s powers.

> (2) The Public Guardian may make inquiries from time to time as to the manner in which a withdrawer has exercised the withdrawer’s functions under this Part.

> (1) A withdrawer must keep records of the exercise of the withdrawer's powers.

> (2) The Public Guardian may make inquiries from time to time as to the manner in which a withdrawer has exercised the withdrawer's functions under this Part.

> (31)

> (1) Unless this Part provides otherwise, a withdrawal certificate issued under section 25 is valid for a period of 3 years commencing with the date of issue of the certificate.

> (2) The Public Guardian may reduce or extend the period of validity of a withdrawal certificate; and an extension may be without limit of time.

> (3) Subsections (1) and (2) are without prejudice to the right of the withdrawer to make subsequent applications under section 25 after the withdrawal certificate ceases to be valid or, as the case may be, a suspension or termination of the withdrawer’s authority.

> (4) The validity of a withdrawal certificate ceases—

> (a) on the appointment of a guardian with powers relating to the funds or account in question;

> (b) on the granting of an intervention order relating to the funds or account in question; or

> (c) on a continuing attorney’s acquiring authority to act in relation to the funds or account in question,

> (c) on a continuing attorney's acquiring authority to act in relation to the funds or account in question,

> but no liability is incurred by any person who acts in good faith under this Part in ignorance of the withdrawal certificate ceasing to be valid under this subsection.

> (31A)

> (1) The Public Guardian may suspend or terminate the authority of a withdrawer under a withdrawal certificate.

@@ -1584,12 +1584,12 @@

> (e) such other persons as the Public Guardian thinks fit.

> (3) A suspension or termination under subsection (1) suspends or, as the case may be, terminates all operations on the designated account by the withdrawer whose authority is suspended or terminated.

> (4) The Public Guardian must on suspending or terminating the authority of the withdrawer enter prescribed particulars in the register maintained by the Public Guardian under section 6(2)(b)(iii).

> (5) The Public Guardian may on terminating the authority of the withdrawer issue to the withdrawer an interim withdrawal certificate to continue to intromit with the adult’s funds for a period not exceeding 4 weeks from the date of the termination.

> (5) The Public Guardian may on terminating the authority of the withdrawer issue to the withdrawer an interim withdrawal certificate to continue to intromit with the adult's funds for a period not exceeding 4 weeks from the date of the termination.

> (31B)

> (1) This section applies to an application under section 25 if condition A or B is satisfied.

> (2) Condition A is that the application is made by a person holding an existing withdrawal certificate.

> (3) Condition B is that—

> (a) the main withdrawer has died or become incapable or the main withdrawer’s authority under this Part has been terminated; and

> (a) the main withdrawer has died or become incapable or the main withdrawer's authority under this Part has been terminated; and

> (b) the application is made, without undue delay, by an individual who was the reserve withdrawer at the time of the death, incapacity, or termination, as the case may be.

> (4) Where this section applies, the Public Guardian may disapply any of the provisions in sections 26(1), 27A and 27B to an application to which this section applies (but may require the applicant to provide such other information as the Public Guardian requires to determine the application).

> (5) Where condition A is satisfied in relation to an application under section 25, the existing withdrawal certificate will continue to be valid until the application is determined.

@@ -1608,34 +1608,34 @@

> (c) to reduce or extend the period of validity of a withdrawal certificate under section 31(2); or

> (d) to suspend or terminate the authority of a withdrawer under section 31A,

> may be appealed to the sheriff.

> (2) The sheriff’s decision on an appeal under subsection (1) is final.

> (2) The sheriff's decision on an appeal under subsection (1) is final.

> (31E)

> (1) This section applies where—

> (a) there is a guardian with powers relating to the property or financial affairs of an adult; and

> (b) an application is made under section 25 in relation to the adult’s funds.

> (2) Section 27A does not apply to the application if it is made by the adult’s guardian.

> (b) an application is made under section 25 in relation to the adult's funds.

> (2) Section 27A does not apply to the application if it is made by the adult's guardian.

> (3) The Public Guardian may disapply section 27B to the application.

> (4) Where—

> (a) it appears to the Public Guardian that, if the application were granted, the adult’s interests in the adult’s property and affairs can be satisfactorily safeguarded or promoted otherwise than by the existing guardianship; and

> (a) it appears to the Public Guardian that, if the application were granted, the adult's interests in the adult's property and affairs can be satisfactorily safeguarded or promoted otherwise than by the existing guardianship; and

> (b) the Public Guardian proposes to grant the application,

> the Public Guardian must initiate the recall of the guardianship under section 73.

> (5) The Public Guardian may not grant the application unless the guardianship is recalled.

> (6) Where the Public Guardian grants the application, the withdrawal certificate issued to the withdrawer is valid for such period as the Public Guardian specifies at the time the Public Guardian grants the application.

> (7) This section does not apply, and no application under this Part may be made, in the case of an adult if there is a person who is—

> (a) appointed or otherwise entitled under the law of any country other than Scotland to act as a guardian (however called) in relation to the adult’s property and financial affairs during the adult’s incapacity; and

> (b) recognised by the law of Scotland as the adult’s guardian.

> (a) appointed or otherwise entitled under the law of any country other than Scotland to act as a guardian (however called) in relation to the adult's property and financial affairs during the adult's incapacity; and

> (b) recognised by the law of Scotland as the adult's guardian.

> (8) Despite subsection (7), no liability is incurred by any person who acts in good faith under this Part in ignorance of any guardian of the type mentioned in that subsection.

> (32) Where an individual who along with one or more others is the holder of a joint account with a fundholder becomes incapable in relation to decisions about, or of safeguarding the individual’s interests in, the funds in the account, any other joint account holder may continue to operate the account unless—

> (32) Where an individual who along with one or more others is the holder of a joint account with a fundholder becomes incapable in relation to decisions about, or of safeguarding the individual's interests in, the funds in the account, any other joint account holder may continue to operate the account unless—

> (a) the terms of the account provide otherwise; or

> (b) the joint account holder is barred by an order of any court from so doing.

> (33)

> (1) In section 24B, 27A and 31 any reference to—

> (a) a guardian includes a reference to a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during his incapacity, if the guardianship is recognised by the law of Scotland;

> (b) a continuing attorney includes a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter’s property or financial affairs and having continuing effect notwithstanding the granter’s incapacity.

> (c) a welfare attorney includes a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and having effect during the granter’s incapacity.

> (b) a continuing attorney includes a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter's property or financial affairs and having continuing effect notwithstanding the granter's incapacity.

> (c) a welfare attorney includes a reference to a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter's personal welfare and having effect during the granter's incapacity.

> (2) In this Part—

> - “fundholder” means a bank, building society or other similar body which holds funds on behalf of another person;

> - “withdrawal certificate” means a certificate issued under section 25, 26B, 26E, 26F or 31A.

> - “*fundholder*” means a bank, building society or other similar body which holds funds on behalf of another person;

> - “*withdrawal certificate*” means a certificate issued under section 25, 26B, 26E, 26F or 31A.

@@ -1645,13 +1645,13 @@

- (1) In section 53 (intervention orders) of the 2000 Act—

- (a) in subsection (4), for “Section 57(3) and (4)” substitute “Subsections (3), (3A), (3B) and (4) of section 57”,

- (a) in subsection (4), for “Section 57(3) and (4)” substitute “ Subsections (3), (3A), (3B) and (4) of section 57 ”,

- (b) in subsection (7)—

- (i) the word “and” and the words from “shall” to the end of paragraph (b) are repealed, and

- (ii) after “caution”, where last occurring, insert “or to give such other security as the sheriff thinks fit”,

- (ii) after “caution”, where last occurring, insert “ or to give such other security as the sheriff thinks fit ”,

- (c) in subsection (10)—

@@ -1663,17 +1663,17 @@

- (iii) in paragraph (b), after “Commission” insert “of the terms of the interlocutor”.

- (2) In section 55 (notice of change of address), for the words from “notify”, where first occurring, to “Guardian”, where second occurring, substitute “, not later than 7 days after any change of the person’s or the adult’s address, notify the Public Guardian of the change who”.

- (iii) in paragraph (b), after “Commission” insert “ of the terms of the interlocutor ”.

- (2) In section 55 (notice of change of address), for the words from “notify”, where first occurring, to “Guardian”, where second occurring, substitute “ , not later than 7 days after any change of the person's or the adult's address, notify the Public Guardian of the change who ”.

- (3) After section 56 insert—

> (56A) Where a person authorised under an intervention order dies, the person’s personal representatives shall, if aware of the existence of the authority, notify the Public Guardian who shall—

> (56A) Where a person authorised under an intervention order dies, the person's personal representatives shall, if aware of the existence of the authority, notify the Public Guardian who shall—

> (a) notify—

> (i) the adult;

> (ii) the local authority; and

> (iii) in a case where the adult’s incapacity is by reason of, or reasons which include, mental disorder and the intervention order relates to the adult’s personal welfare or factors including it, the Mental Welfare Commission; and

> (iii) in a case where the adult's incapacity is by reason of, or reasons which include, mental disorder and the intervention order relates to the adult's personal welfare or factors including it, the Mental Welfare Commission; and

> (b) enter prescribed particulars in the register maintained under section 6(2)(b)(v).

@@ -1684,7 +1684,7 @@

- (1) In section 57 (guardianship orders) of the 2000 Act—

- (a) in subsection (3)(a), for “an approved” substitute “a relevant”,

- (a) in subsection (3)(a), for “an approved” substitute “ a relevant ”,

- (b) after subsection (3), insert—

@@ -1693,14 +1693,14 @@

- (c) in subsection (6)(b), for the words from “period” to “appointment” substitute “effective period”,

- (c) in subsection (6)(b), for the words from “period” to “appointment” substitute “ effective period ”,

- (d) after subsection (6) insert—

> (6A) The “effective period”, for the purposes of subsection (6), means—

> (a) the period of 3 months beginning with the date of appointment; or

> (b) such longer period (not exceeding 6 months) beginning with that date as the sheriff may specify in the order.

> (6B) In subsection (3)(a), “relevant medical practitioner” means—

> (6B) In subsection (3)(a), “*relevant medical practitioner*” means—

> (a) an approved medical practitioner;

> (b) where the adult concerned is not present in Scotland, a person who—

> (i) holds qualifications recognised in the place where the adult is present and has special experience in relation to the diagnosis and treatment of mental disorder which correspond to the qualifications and experience needed to be an approved medical practitioner; and

@@ -1710,17 +1710,17 @@

- (e) in subsection (7), for “(3)(a)” substitute “(6B)”.

- (e) in subsection (7), for “(3)(a)” substitute “ (6B) ”.

- (2) In section 58 (disposal of application for guardianship) of the 2000 Act—

- (a) in subsection (6)—

- (i) for the words from “shall” to the end of paragraph (b) substitute “may”,

- (ii) after “caution”, where last occurring, insert “or to give such other security as the sheriff thinks fit”,

- (b) in subsection (7)(b), after “caution” insert “or given other security”.

- (i) for the words from “shall” to the end of paragraph (b) substitute “ may ”,

- (ii) after “caution”, where last occurring, insert “ or to give such other security as the sheriff thinks fit ”,

- (b) in subsection (7)(b), after “caution” insert “ or given other security ”.

- (3) In section 60 (renewal of guardianship)—

@@ -1728,16 +1728,16 @@

> (3) There must be lodged in court along with an application under this section—

> (a) at least one report, in the prescribed form, of an examination and assessment of the adult carried out by a medical practitioner not more than 30 days before the lodging of the application;

> (b) where the application relates to the adult’s personal welfare, a report, in the prescribed form, from the mental health officer (but where it is in jeopardy only because of the adult’s inability to communicate, from the chief social work officer), containing the officer’s opinion as to—

> (b) where the application relates to the adult's personal welfare, a report, in the prescribed form, from the mental health officer (but where it is in jeopardy only because of the adult's inability to communicate, from the chief social work officer), containing the officer's opinion as to—

> (i) the general appropriateness of continuing the guardianship, based on an interview and assessment of the adult carried out not more than 30 days before the lodging of the application; and

> (ii) the suitability of the applicant to continue to be the adult’s guardian; and

> (c) where the application relates to the adult’s property or financial affairs, a report from the Public Guardian, in the prescribed form, containing the Public Guardian’s opinion as to—

> (i) the applicant’s conduct as the adult’s guardian; and

> (ii) the suitability of the applicant to continue to be the adult’s guardian.

> (ii) the suitability of the applicant to continue to be the adult's guardian; and

> (c) where the application relates to the adult's property or financial affairs, a report from the Public Guardian, in the prescribed form, containing the Public Guardian's opinion as to—

> (i) the applicant's conduct as the adult's guardian; and

> (ii) the suitability of the applicant to continue to be the adult's guardian.

> (3A) In a case where the incapacity is by reason of mental disorder—

> (a) where a single report is lodged under subsection (3)(a), the related examination and assessment must be carried out by a relevant medical practitioner;

> (b) where 2 or more reports are so lodged, at least one of the related examinations and assessments must be carried out by a relevant medical practitioner.

> - “Relevant medical practitioner” has the same meaning in this subsection as it has in section 57(3)(a) (see definition in section 57(6B)).

> “Relevant medical practitioner” has the same meaning in this subsection as it has in section 57(3)(a) (see definition in section 57(6B)).

@@ -1747,23 +1747,23 @@

- (4) In section 61(3) (application for registration of guardianship order) of the 2000 Act, after “caution” insert “or giving other security”.

- (5) In section 62(5)(b) (duty to issue certificate of additional guardian’s appointment) of the 2000 Act, after “caution” insert “or given other security”.

- (4) In section 61(3) (application for registration of guardianship order) of the 2000 Act, after “caution” insert “ or giving other security ”.

- (5) In section 62(5)(b) (duty to issue certificate of additional guardian's appointment) of the 2000 Act, after “caution” insert “ or given other security ”.

- (6) In section 63 (substitute guardian) of the 2000 Act—

- (a) in subsection (5)—

- (i) for the words from “shall” to the end of paragraph (b) substitute “may”,

- (ii) after “caution”, where last occurring, insert “or to give such other security as the sheriff thinks fit”,

- (b) in subsection (9)(b), after “caution” insert “or given other security”.

- (7) In section 64(2)(b) (medical treatment to which a guardian cannot consent), for “mentioned in section 48(1) or (2)” substitute “in relation to which the authority conferred by section 47(2) does not apply by virtue of regulations made under section 48(2)”.

- (8) In section 70 (non-compliance with guardian’s decisions)—

- (i) for the words from “shall” to the end of paragraph (b) substitute “ may ”,

- (ii) after “caution”, where last occurring, insert “ or to give such other security as the sheriff thinks fit ”,

- (b) in subsection (9)(b), after “caution” insert “ or given other security ”.

- (7) In section 64(2)(b) (medical treatment to which a guardian cannot consent), for “mentioned in section 48(1) or (2)” substitute “ in relation to which the authority conferred by section 47(2) does not apply by virtue of regulations made under section 48(2) ”.

- (8) In section 70 (non-compliance with guardian's decisions)—

- (a) in subsection (1), the words “or by any other person”, “or other person” and “or any person named in the order” are repealed,

@@ -1779,15 +1779,15 @@

- (a) in subsection (2)—

- (i) for the words from “shall” to the end of paragraph (b) substitute “may”,

- (ii) after “caution”, where last occurring, insert “or to give such other security as the sheriff thinks fit”,

- (i) for the words from “shall” to the end of paragraph (b) substitute “ may ”,

- (ii) after “caution”, where last occurring, insert “ or to give such other security as the sheriff thinks fit ”,

- (b) in subsection (3)(b)—

- (i) in sub-paragraph (i), after “caution” insert “or given other security”,

- (ii) in sub-paragraph (ii), after “caution” insert “or given other security”.

- (i) in sub-paragraph (i), after “caution” insert “ or given other security ”,

- (ii) in sub-paragraph (ii), after “caution” insert “ or given other security ”.

- (10) In section 72(1) (discharge of guardian with financial powers), after paragraph (a) insert—

@@ -1795,13 +1795,13 @@

- (11) In section 73 (recall of guardian’s powers) of the 2000 Act—

- (11) In section 73 (recall of guardian's powers) of the 2000 Act—

- (a) in subsection (3), the words from “(other” to “guardian)” are repealed,

- (b) after subsection (3) insert—

> (3A) The Mental Welfare Commission may recall the powers of a guardian under subsection (3) only if those powers were granted in a case where the adult’s incapacity is by reason of, or reasons which include, mental disorder.

> (3A) The Mental Welfare Commission may recall the powers of a guardian under subsection (3) only if those powers were granted in a case where the adult's incapacity is by reason of, or reasons which include, mental disorder.

@@ -1815,14 +1815,14 @@

> (73A)

> (1) This section applies where—

> (a) a local authority’s chief social work officer is appointed as a guardian; and

> (a) a local authority's chief social work officer is appointed as a guardian; and

> (b) either—

> (i) the local authority wish to recall their chief social work officer’s guardianship powers at their own instance; or

> (i) the local authority wish to recall their chief social work officer's guardianship powers at their own instance; or

> (ii) another person (including the adult himself) applies to the local authority for such a recall.

> (2) Where this section applies—

> (a) the local authority shall, for the purposes of section 73(5), treat the Public Guardian and the Mental Welfare Commission as persons whom they consider to have an interest in the recall of the guardian’s powers; and

> (b) if the Public Guardian, the Mental Welfare Commission or any other person to whom intimation is given under section 73(5) objects to the recall of the guardian’s powers, the local authority—

> (i) shall not recall the guardian’s powers; but

> (b) if the Public Guardian, the Mental Welfare Commission or any other person to whom intimation is given under section 73(5) objects to the recall of the guardian's powers, the local authority—

> (i) shall not recall the guardian's powers; but

> (ii) shall instead remit the matter for determination by the sheriff under section 73(8).

@@ -1831,13 +1831,13 @@

- (a) in subsection (2)—

- (i) for the words from “shall” to the end of paragraph (b) substitute “may”,

- (ii) after “caution”, where last occurring, insert “or to give such other security as the sheriff thinks fit”,

- (b) in subsection (5)(c), after “caution” insert “or other security”.

- (14) In section 75(3)(b) (duty to issue certificate of substitute guardian’s appointment) of the 2000 Act, after “caution” insert “or given other security”.

- (i) for the words from “shall” to the end of paragraph (b) substitute “ may ”,

- (ii) after “caution”, where last occurring, insert “ or to give such other security as the sheriff thinks fit ”,

- (b) in subsection (5)(c), after “caution” insert “ or other security ”.

- (14) In section 75(3)(b) (duty to issue certificate of substitute guardian's appointment) of the 2000 Act, after “caution” insert “ or given other security ”.

- (15) After section 75 insert—

@@ -1845,7 +1845,7 @@

> (a) notify—

> (i) the adult;

> (ii) the local authority; and

> (iii) in a case where the adult’s incapacity is by reason of, or reasons which include, mental disorder and the guardianship order relates to the adult’s personal welfare or factors including it, the Mental Welfare Commission;

> (iii) in a case where the adult's incapacity is by reason of, or reasons which include, mental disorder and the guardianship order relates to the adult's personal welfare or factors including it, the Mental Welfare Commission;

> (b) enter prescribed particulars in the register maintained under section 6(2)(b)(iv); and

> (c) issue a new certificate of appointment—

> (i) to any surviving joint guardian;

@@ -1865,15 +1865,15 @@

> —

> (a) in the case of a curator bonis who, under paragraph 1(2), became guardian to a person on the person attaining the age of 16 years, to the period of 2 years from the later of the following dates—

> (i) the date on which section 60(17) (which amends this paragraph) of the Adult Support and Protection (Scotland) Act [2007 (asp 10)](https://www.legislation.gov.uk/asp/2007/10) came into force;

> (i) the date on which section 60(17) (which amends this paragraph) of the Adult Support and Protection (Scotland) Act 2007 (asp 10) came into force;

> (ii) the date on which the person attained the age of 16 years,

> (b) in any other case, to the period of 2 years from the date on which section 60(17) (which amends this paragraph) of the Adult Support and Protection (Scotland) Act [2007 (asp 10)](https://www.legislation.gov.uk/asp/2007/10) came into force.

> (b) in any other case, to the period of 2 years from the date on which section 60(17) (which amends this paragraph) of the Adult Support and Protection (Scotland) Act 2007 (asp 10) came into force.

- (b) after sub-paragraph (3) insert—

> (3A) A person who has become a guardian to an adult by virtue of this schedule and who was a curator bonis, tutor dative or tutor-in-law to that adult shall cease to be authorised to act as that adult’s guardian—

> (a) where the person does not apply for renewal of guardianship within the 2 year period set by sub-paragraph (3), on the expiry of that period;

> (b) where—

> (i) the person applies for such a renewal within that period; and

@@ -1885,15 +1885,15 @@

> in accordance with the provisions of this Act.

> (3B) Sub-paragraph (3A) does not prevent the authority of a guardian of the type mentioned in that sub-paragraph from being terminated (by virtue of the terms on which the guardian is authorised to act or sections 71, 73, 75 or 79A) earlier than the date on which it would otherwise terminate by operation of that sub-paragraph.

> (3C) Where—

> (a) a person (“G”) who was a curator bonis, tutor dative or tutor-at-law to an adult becomes the adult’s guardian by virtue of this schedule; and

> (b) another person is appointed under section 62 as an additional guardian to the adult before G’s appointment as guardian has been renewed in accordance with the provisions of this Act,

> (a) a person (“G”) who was a curator bonis, tutor dative or tutor-at-law to an adult becomes the adult's guardian by virtue of this schedule; and

> (b) another person is appointed under section 62 as an additional guardian to the adult before G's appointment as guardian has been renewed in accordance with the provisions of this Act,

> subsection (3A) applies in relation to the additional guardian as it applies in relation to G.

> (3D) The Public Guardian must take reasonable steps to give notice of the effect of sub-paragraph (3A) to any person who—

> (a) is a guardian to an adult by virtue of this schedule;

> (b) was a curator bonis to that adult; and

> (c) has not applied for renewal of guardianship.

> (3E) A local authority must take reasonable steps to give notice of the effect of sub-paragraph (3A) to any person who—

> (a) is a guardian to an adult residing within the local authority’s area by virtue of this schedule;

> (a) is a guardian to an adult residing within the local authority's area by virtue of this schedule;

> (b) was a tutor dative or tutor-in-law to that adult; and

> (c) has not applied for renewal of guardianship.

@@ -1908,16 +1908,16 @@

> (81A)

> (1) The Public Guardian may, when carrying out an investigation under section 6(2)(c) or (d) or inquiries under section 30B(2)—

> (a) require any person falling within subsection (2) to provide the Public Guardian with—

> (i) the person’s records of the exercise of the person’s powers in relation to the adult to whom the investigation relates; and

> (i) the person's records of the exercise of the person's powers in relation to the adult to whom the investigation relates; and

> (ii) such other information relating to the exercise of those powers as the Public Guardian may reasonably require,

> (b) require any person who holds (or who has held) funds on behalf of the adult to whom the investigation relates to provide the Public Guardian with—

> (i) its records of the account; and

> (ii) such other information relating to those accounts as the Public Guardian may reasonably require.

> (2) A person falls within this subsection if the person is or has been—

> (a) a continuing attorney appointed by the adult to whom the investigation relates;

> (b) a withdrawer with authority to intromit with that adult’s funds;

> (b) a withdrawer with authority to intromit with that adult's funds;

> (c) a person authorised under an intervention order to act in relation to that adult; or

> (d) that adult’s guardian.

> (d) that adult's guardian.

> (3) A fundholder may charge a reasonable fee for complying with a requirement under subsection (1)(b) and may recover that fee from the account concerned.

@@ -1928,25 +1928,25 @@

##### 62

- (1) In the National Assistance Act [1948 (c. 29)](https://www.legislation.gov.uk/ukpga/1948/29)—

- (1) In the National Assistance Act 1948 (c. 29)—

- (a) sections 42 and 43 are repealed, and

- (b) in section 65(f)—

- (i) after “expressed” insert “in sections 22(2) to (8) and 26(2) to (4) of this Act”,

- (ii) for the word “thereof” substitute “of this Act”.

- (2) In section 87(3) of the Social Work (Scotland) Act [1968 (c. 49)](https://www.legislation.gov.uk/ukpga/1968/49), for the words from “(as amended”, where first occurring, to “etc.)” substitute “(as amended by any enactment within the meaning of the Scotland Act [1998 (c. 46)](https://www.legislation.gov.uk/ukpga/1998/46)) of the said Act of 1948”.

- (3) In section 4(1)(b) of the Community Care and Health (Scotland) Act [2002 (asp 5)](https://www.legislation.gov.uk/asp/2002/5), the words from “including” to the end of paragraph (b) are repealed.

- (i) after “expressed” insert “ in sections 22(2) to (8) and 26(2) to (4) of this Act ”,

- (ii) for the word “thereof” substitute “ of this Act ”.

- (2) In section 87(3) of the Social Work (Scotland) Act 1968 (c. 49), for the words from “(as amended”, where first occurring, to “etc.)” substitute “ (as amended by any enactment within the meaning of the Scotland Act 1998 (c. 46)) of the said Act of 1948 ”.

- (3) In section 4(1)(b) of the Community Care and Health (Scotland) Act 2002 (asp 5), the words from “including” to the end of paragraph (b) are repealed.

#### Direct payments: sub-delegation to councils

##### 63

In section 12B(6) of the Social Work (Scotland) Act [1968 (c. 49)](https://www.legislation.gov.uk/ukpga/1968/49), before paragraph (a) insert—

In section 12B(6) of the Social Work (Scotland) Act 1968 (c. 49), before paragraph (a) insert—

> (za) make provision for the delegation of functions to local authorities;

@@ -1956,11 +1956,11 @@

##### 64

After section 13 of Social Work (Scotland) Act [1968 (c. 49)](https://www.legislation.gov.uk/ukpga/1968/49) insert—

After section 13 of Social Work (Scotland) Act 1968 (c. 49) insert—

> (13ZA)

> (1) Where—

> (a) a local authority have decided under section 12A of this Act that an adult’s needs call for the provision of a community care service; and

> (a) a local authority have decided under section 12A of this Act that an adult's needs call for the provision of a community care service; and

> (b) it appears to the local authority that the adult is incapable in relation to decisions about the service,

> the local authority may take any steps which they consider would help the adult to benefit from the service.

> (2) Without prejudice to the generality of subsection (1) above, steps that may be taken by the local authority include moving the adult to residential accommodation provided in pursuance of this Part.

@@ -1970,17 +1970,17 @@

> (b) an intervention order has been granted relating to the proposed steps; or

> (c) an application has been made (but not yet determined) for an intervention order or guardianship order under Part 6 of the 2000 Act relating to the proposed steps.

> (5) In this section—

> (a) “the 2000 Act” means the Adults with Incapacity (Scotland) Act [2000 (asp 4)](https://www.legislation.gov.uk/asp/2000/4);

> (b) “adult” has the meaning given in section 1(6) of the 2000 Act;

> (c) “community care service” has the meaning given in section 5A of this Act;

> (d) “incapable” has the meaning given in section 1(6) of the 2000 Act;

> (e) “intervention order” is to be construed in accordance with section 53 of the 2000 Act”;

> (a) “*the 2000 Act*” means the Adults with Incapacity (Scotland) Act 2000 (asp 4);

> (b) “*adult*” has the meaning given in section 1(6) of the 2000 Act;

> (c) “*community care service*” has the meaning given in section 5A of this Act;

> (d) “*incapable*” has the meaning given in section 1(6) of the 2000 Act;

> (e) “*intervention order*” is to be construed in accordance with section 53 of the 2000 Act”;

> (f) the reference to a guardian includes a reference to—

> (i) a guardian appointed under the 2000 Act; and

> (ii) a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during his incapacity, if the guardianship is recognised by the law of Scotland;

> (g) the reference to a welfare attorney includes a reference to—

> (i) a welfare attorney within the meaning of section 16 of the 2000 Act; and

> (ii) a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and having effect during the granter’s incapacity.

> (ii) a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter's personal welfare and having effect during the granter's incapacity.

@@ -1988,11 +1988,11 @@

##### 65

- (1) Section 86 (adjustments between local authority providing services and local authority of area of ordinary residence) of the Social Work (Scotland) Act [1968 (c. 49)](https://www.legislation.gov.uk/ukpga/1968/49) is amended as follows—

- (1) Section 86 (adjustments between local authority providing services and local authority of area of ordinary residence) of the Social Work (Scotland) Act 1968 (c. 49) is amended as follows—

- (a) in subsection (1)—

- (i) for “section”, where first occurring, substitute “subsection”,

- (i) for “section”, where first occurring, substitute “ subsection ”,

- (ii) after paragraph (b) insert—

@@ -2002,25 +2002,25 @@

- (b) in subsection (3)—

- (i) after “child,”, where first occurring, insert “any period during which he is provided with accommodation under this Act or under sections 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act [2003 (asp 13)](https://www.legislation.gov.uk/asp/2003/13),”,

- (ii) for the words from “hospital”, where first occurring, to “1978”, where second occurring, substitute “health service hospital (within the meaning of section 108(1) of the National Health Service (Scotland) Act [1978 (c. 29)](https://www.legislation.gov.uk/ukpga/1978/29))”,

- (i) after “child,”, where first occurring, insert “ any period during which he is provided with accommodation under this Act or under sections 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), ”,

- (ii) for the words from “hospital”, where first occurring, to “1978”, where second occurring, substitute “ health service hospital (within the meaning of section 108(1) of the National Health Service (Scotland) Act 1978 (c. 29)) ”,

- (c) after subsection (3) insert—

> (4) This subsection applies where a local authority (“the responsible authority”) performs a function under—

> (4) This subsection applies where a local authority (“*the responsible authority*”) performs a function under—

> (a) this Act;

> (b) Part II of the Children (Scotland) Act [1995 (c. 36)](https://www.legislation.gov.uk/ukpga/1995/36); or

> (c) section 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act [2003 (asp 13)](https://www.legislation.gov.uk/asp/2003/13),

> by making arrangements with a person (“the provider”) in terms of which the provider undertakes to accommodate, or to secure accommodation for, another person.

> (b) Part II of the Children (Scotland) Act 1995 (c. 36); or

> (c) section 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13),

> by making arrangements with a person (“*the provider*”) in terms of which the provider undertakes to accommodate, or to secure accommodation for, another person.

> (5) Where subsection (4) applies—

> (a) any expenditure incurred under the arrangements by a provider which is a local authority is recoverable from the responsible authority; and

> (b) any period during which the person is accommodated under the arrangements is to be disregarded in determining the person’s ordinary residence for the purposes of subsection (1) of this section.

> (6) The Scottish Ministers may make regulations specifying circumstances in which a local authority (“the providing authority”) may recover from another local authority (“the other authority”) expenditure which the providing authority incurs in the provision of services or facilities under arrangements made with the other authority for the purpose of enabling that other authority to perform a function under—

> (b) any period during which the person is accommodated under the arrangements is to be disregarded in determining the person's ordinary residence for the purposes of subsection (1) of this section.

> (6) The Scottish Ministers may make regulations specifying circumstances in which a local authority (“*the providing authority*”) may recover from another local authority (“*the other authority*”) expenditure which the providing authority incurs in the provision of services or facilities under arrangements made with the other authority for the purpose of enabling that other authority to perform a function under—

> (a) this Act;

> (b) Part II of the Children (Scotland) Act [1995 (c. 36)](https://www.legislation.gov.uk/ukpga/1995/36); or

> (c) section 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act [2003 (asp 13)](https://www.legislation.gov.uk/asp/2003/13).

> (7) The Scottish Ministers may make regulations specifying circumstances which must be taken into account, or disregarded, when determining a person’s ordinary residence for the purposes of subsection (1) of this section (and such regulations may modify subsection (2), (3) and (5)(b) of this section).

> (b) Part II of the Children (Scotland) Act 1995 (c. 36); or

> (c) section 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

> (7) The Scottish Ministers may make regulations specifying circumstances which must be taken into account, or disregarded, when determining a person's ordinary residence for the purposes of subsection (1) of this section (and such regulations may modify subsection (2), (3) and (5)(b) of this section).

> (8) Regulations made under subsection (6) or (7) of this section may—

> (a) make different provision for different cases and for different persons;

> (b) include such supplementary, incidental, consequential and transitional provisions and savings as the Scottish Ministers think fit.

@@ -2029,13 +2029,13 @@

- (2) In section 2 of the Community Care and Health (Scotland) Act [2002 (asp 5)](https://www.legislation.gov.uk/asp/2002/5), for “section 87(2)” substitute “sections 86 and 87(2)”.

- (2) In section 2 of the Community Care and Health (Scotland) Act 2002 (asp 5), for “section 87(2)” substitute “ sections 86 and 87(2) ”.

#### Application of Social Work (Scotland) Act 1968: persons outwith Scotland

##### 66

After section 87 of the Social Work (Scotland) Act [1968 (c. 49)](https://www.legislation.gov.uk/ukpga/1968/49) insert—

After section 87 of the Social Work (Scotland) Act 1968 (c. 49) insert—

> (87A)

> (1) The Scottish Ministers may make regulations modifying this Act in such manner as they think fit for the purposes of applying or disapplying any of its provisions in relation to persons placed in Scotland by virtue of arrangements made by—

@@ -2052,7 +2052,7 @@

##### 67

After section 6(2)(d) of the Adults with Incapacity (Scotland) Act [2000 (asp 4)](https://www.legislation.gov.uk/asp/2000/4), insert—

After section 6(2)(d) of the Adults with Incapacity (Scotland) Act 2000 (asp 4), insert—

> (da) to take part as a party in any proceedings before a court or to initiate such proceedings where he considers it necessary to do so to safeguard the property or financial affairs of an adult who is incapable for the purposes of this Act;

@@ -2064,7 +2064,7 @@

##### 68

Section 101 (duty of Mental Health Tribunal to review determination extending compulsory treatment order) of the Mental Health (Care and Treatment) (Scotland) Act [2003 (asp 13)](https://www.legislation.gov.uk/asp/2003/13) is amended as follows—

Section 101 (duty of Mental Health Tribunal to review determination extending compulsory treatment order) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) is amended as follows—

- (a) for subsection (2)(b) substitute—

@@ -2086,7 +2086,7 @@

##### 69

- (1) In section 183(5)(b)(ii) of the Mental Health (Care and Treatment) (Scotland) Act [2003 (asp 13)](https://www.legislation.gov.uk/asp/2003/13) substitute—

- (1) In section 183(5)(b)(ii) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) substitute—

> (ii) either—

> (A) that the conditions mentioned in paragraphs (b) and (c) of section 182(4) of this Act continue to apply in respect of the patient; or

@@ -2122,7 +2122,7 @@

##### 70

- (1) For section 207(5)(b)(ii) of the Mental Health (Care and Treatment) (Scotland) Act [2003 (asp 13)](https://www.legislation.gov.uk/asp/2003/13) substitute—

- (1) For section 207(5)(b)(ii) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) substitute—

> (ii) either—

> (A) that the conditions mentioned in paragraph (b) and (c) of section 206(4) of this Act continue to apply in respect of the patient; or

@@ -2166,7 +2166,7 @@

##### 71

- (1) Section 289 (cross-border transfer of patients subject to requirements other than detention) of the Mental Health (Care and Treatment) (Scotland) Act [2003 (asp 13)](https://www.legislation.gov.uk/asp/2003/13) is amended as follows—

- (1) Section 289 (cross-border transfer of patients subject to requirements other than detention) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) is amended as follows—

- (a) in subsection (1)—

@@ -2178,14 +2178,14 @@

- (b) in subsection (2), for “that provision is made” substitute “provision is made by regulations under paragraph (a) of subsection (1) above”,

- (b) in subsection (2), for “that provision is made” substitute “ provision is made by regulations under paragraph (a) of subsection (1) above ”,

- (c) after subsection (2) insert—

> (2XA) Where provision is made by regulations under paragraph (a) of subsection (1) above, the regulations may make provision for exceptions to provisions included in them by virtue of subsection (2)(d).

> (2YA) Where provision is made by regulations under paragraph (b) of subsection (1) above, the regulations shall provide for the reception of persons to take place only if—

> (a) the managers of a hospital consent to the reception; and

> (b) those managers undertake to appoint an approved medical practitioner to be the person’s responsible medical officer.

> (b) those managers undertake to appoint an approved medical practitioner to be the person's responsible medical officer.

> (2ZA) Regulations under subsection (1) above may in particular—

> (a) make provision for things done under the law of a territory other than Scotland to be treated as things done under provisions of the law of Scotland,

> (b) confer powers and immunities on persons engaged in—

@@ -2196,7 +2196,7 @@

- (d) in subsection (2A), for “Subsection (2) above is” substitute “Subsections (2) to (2ZA) above are”,

- (d) in subsection (2A), for “Subsection (2) above is” substitute “ Subsections (2) to (2ZA) above are ”,

- (e) after subsection (3) insert—

@@ -2206,7 +2206,7 @@

- (2) In section 309 (patients from other jurisdictions) of that Act—

- (a) in subsection (1), after “to”, where third occurring, insert “corresponding requirements or”,

- (a) in subsection (1), after “to”, where third occurring, insert “ corresponding requirements or ”,

- (b) after subsection (2) insert—

@@ -2214,15 +2214,15 @@

- (3) In section 316(1)(c) (offence of inducing or assisting patient to abscond), after “section” insert “289 or”.

- (4) In section 326(4)(c) (regulations subject to affirmative resolution) of that Act, after “286,” insert “289,”.

- (3) In section 316(1)(c) (offence of inducing or assisting patient to abscond), after “section” insert “ 289 or ”.

- (4) In section 326(4)(c) (regulations subject to affirmative resolution) of that Act, after “286,” insert “ 289, ”.

#### Cross-border visits: leave of absence

##### 72

- (1) After section 309 of the Mental Health (Care and Treatment) (Scotland) Act [2003 (asp 13)](https://www.legislation.gov.uk/asp/2003/13), insert—

- (1) After section 309 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), insert—

> (309A)

> (1) Regulations may make provision for and in connection with the keeping in charge of a person who is subject to a corresponding suspension of detention in England, Wales, Northern Ireland, the Isle of Man or the Channel Islands.

@@ -2235,13 +2235,13 @@

- (2) In section 326(4)(c) (regulations subject to affirmative resolution) of that Act, after “309,” insert “309A,”.

- (2) In section 326(4)(c) (regulations subject to affirmative resolution) of that Act, after “309,” insert “ 309A, ”.

#### Applications to the Mental Health Tribunal for Scotland

##### 73

After paragraph 13 of schedule 2 to the Mental Health (Care and Treatment) (Scotland) Act [2003 (asp 13)](https://www.legislation.gov.uk/asp/2003/13), insert—

After paragraph 13 of schedule 2 to the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), insert—

> (13A) For the purposes of sections 101(3)(c), 189(2)(a)(ii) and (b)(ii) and 213(2)(a)(ii) and (b)(ii) of this Act, an application to the Tribunal which is withdrawn by the applicant before it is determined is to be treated as not having been made.

@@ -2251,19 +2251,19 @@

##### 74

Sections 88 and 128 of the Mental Health Act [1983 (c. 20)](https://www.legislation.gov.uk/ukpga/1983/20) are repealed.

Sections 88 and 128 of the Mental Health Act 1983 (c. 20) are repealed.

#### Assessment orders: amendment of Criminal Procedure (Scotland) Act 1995

##### 75

The Criminal Procedure (Scotland) Act [1995 (c. 46)](https://www.legislation.gov.uk/ukpga/1995/46) is amended as follows—

The Criminal Procedure (Scotland) Act 1995 (c. 46) is amended as follows—

- (a) in section 144 (procedure at first diet)—

- (i) in subsection (1), after “section 145” insert “or 145ZA”,

- (ii) in subsection (9), after “section 145” insert “, 145ZA”,

- (i) in subsection (1), after “section 145” insert “ or 145ZA ”,

- (ii) in subsection (9), after “section 145” insert “ , 145ZA ”,

- (b) after section 145 insert—

@@ -2335,15 +2335,15 @@

- (a) in section 26(4)—

- (i) for “Subsections (5A), (7) and (9)” substitute “Subsection (5A)”, and

- (ii) for “they apply” substitute “it applies”,

- (i) for “Subsections (5A), (7) and (9)” substitute “ Subsection (5A) ”, and

- (ii) for “they apply” substitute “ it applies ”,

- (b) in section 51—

- (i) in subsection (1), for “, himself or any other person” substitute “him”,

- (ii) in subsection (3), after “conviction” insert “to imprisonment for a term not exceeding 3 months.”.

- (i) in subsection (1), for “, himself or any other person” substitute “ him ”,

- (ii) in subsection (3), after “conviction” insert “ to imprisonment for a term not exceeding 3 months. ”.

#### Disabled Persons (Services, Consultation and Representation) Act 1986 (c. 33)

@@ -2351,13 +2351,13 @@

The Disabled Persons (Services, Consultation and Representation) Act 1986 is amended as follows—

- (a) in section 7(2)(a), for “1984” substitute “2003”,

- (a) in section 7(2)(a), for “1984” substitute “ 2003 ”,

- (b) in section 16—

- (i) in paragraph (b) of the definition of “mental disorder”, for the words “section 1(2) of the 1984 Act” substitute “section 328 of the 2003 Act”,

- (ii) in the definition of “State hospital”, for “1984” substitute “2003” .

- (i) in paragraph (b) of the definition of “mental disorder”, for the words “section 1(2) of the 1984 Act” substitute “ section 328 of the 2003 Act ”,

- (ii) in the definition of “State hospital”, for “1984” substitute “ 2003 ” .

#### Legal Aid (Scotland) Act 1986 (c. 47)

@@ -2367,15 +2367,15 @@

- (a) in section 34(2), after the last paragraph insert—

> (g) in pursuance of a requirement made under section 10(1) of the Adult Support and Protection (Scotland) Act [2007 (asp 10)](https://www.legislation.gov.uk/asp/2007/10).

> (g) in pursuance of a requirement made under section 10(1) of the Adult Support and Protection (Scotland) Act 2007 (asp 10).

- (b) in section 36(3)(bb)—

- (i) after “is” insert “applying for an order under section 53(1), 57(1), 60(1), 62(1) or 63(1) of the Adults with Incapacity (Scotland) Act [2000 (asp 4)](https://www.legislation.gov.uk/asp/2000/4) (in relation to himself or any other adult) or is otherwise”,

- (ii) for “the Adults with Incapacity (Scotland) Act [2000 (asp 4)](https://www.legislation.gov.uk/asp/2000/4)” substitute “that Act”.

- (i) after “is” insert “ applying for an order under section 53(1), 57(1), 60(1), 62(1) or 63(1) of the Adults with Incapacity (Scotland) Act 2000 (asp 4) (in relation to himself or any other adult) or is otherwise ”,

- (ii) for “the Adults with Incapacity (Scotland) Act 2000 (asp 4)” substitute “ that Act ”.

#### Criminal Procedure (Scotland) Act 1995 (c. 46)

@@ -2383,13 +2383,13 @@

The Criminal Procedure (Scotland) Act 1995 is amended as follows—

- (a) in section 58(6)(d), for “person” substitute “person’s personal welfare which makes the same provision as the guardianship order which the court proposes to make under this section”,

- (a) in section 58(6)(d), for “person” substitute “ person's personal welfare which makes the same provision as the guardianship order which the court proposes to make under this section ”,

- (b) in section 58(7)—

- (i) after “order”, where first occurring, insert “made under this section”,

- (ii) for “offender” substitute “person” and for “offender's” substitute “person's”,

- (i) after “order”, where first occurring, insert “ made under this section ”,

- (ii) for “offender” substitute “ person ” and for “offender's” substitute “ person's ”,

- (c) in section 60B, the words “under section 58(1) of this Act” are repealed.

@@ -2399,11 +2399,11 @@

The Adults with Incapacity (Scotland) Act 2000 is amended as follows—

- (a) in section 6(2)(b)(iii), for “to intromit” substitute “relating to intromission”,

- (b) in section 39(1)(a), after “(c.4)” insert “, the State Pensions Credit Act [2002 (c. 16)](https://www.legislation.gov.uk/ukpga/2002/16)”,

- (c) in section 41(a), after “(c.4)” insert “, the State Pensions Credit Act [2002 (c. 16)](https://www.legislation.gov.uk/ukpga/2002/16)”,

- (a) in section 6(2)(b)(iii), for “to intromit” substitute “ relating to intromission ”,

- (b) in section 39(1)(a), after “(c.4)” insert “ , the State Pensions Credit Act 2002 (c. 16) ”,

- (c) in section 41(a), after “(c.4)” insert “ , the State Pensions Credit Act 2002 (c. 16) ”,

- (d) in section 47, after subsection (2) insert—

@@ -2420,9 +2420,9 @@

> (1A) Any power under this Act to prescribe anything by regulations is exercisable by the Scottish Ministers.

- (f) in paragraph 6(2) of schedule 2, after “carer” insert “, his named person”,

- (g) in paragraph 3(3) of schedule 3, for “18” substitute “20”,

- (f) in paragraph 6(2) of schedule 2, after “carer” insert “ , his named person ”,

- (g) in paragraph 3(3) of schedule 3, for “18” substitute “ 20 ”,

- (h) for sub-paragraphs (3) to (6) (as re-numbered) of paragraph 4 of schedule 4 substitute—

@@ -2435,7 +2435,7 @@

##### 6

In paragraph 3(1)(b) of schedule 1 to the Mental Health (Care and Treatment) (Scotland) Act [2003 (asp 13)](https://www.legislation.gov.uk/asp/2003/13), for “a minimum of three” substitute “one or more”.

In paragraph 3(1)(b) of schedule 1 to the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), for “a minimum of three” substitute “ one or more ”.

## SCHEDULE 2

@@ -2502,27 +2502,3 @@

[^key-e37a4c3694c92cdf80833f1127edd155]: [Sch. 1 para. 2](https://www.legislation.gov.uk/asp/2007/10/schedule/1/paragraph/2) in force at 30.6.2007 by [S.S.I. 2007/334](https://www.legislation.gov.uk/ssi/2007/334), [art. 2(a)](https://www.legislation.gov.uk/ssi/2007/334/article/2/a), [Sch. 1](https://www.legislation.gov.uk/ssi/2007/334/schedule/1)

[^key-7550afd9cb22b8fd48ed51eff72805a7]: [Sch. 1 para. 6](https://www.legislation.gov.uk/asp/2007/10/schedule/1/paragraph/6) in force at 30.6.2007 by [S.S.I. 2007/334](https://www.legislation.gov.uk/ssi/2007/334), [art. 2(a)](https://www.legislation.gov.uk/ssi/2007/334/article/2/a), [Sch. 1](https://www.legislation.gov.uk/ssi/2007/334/schedule/1)

#### Preliminary

#### Orders about incapable adults' nearest relatives

#### Powers of attorney

#### Accounts and funds

#### Intervention orders

#### Guardianship orders

#### Power to obtain records

#### Direct payments: sub-delegation to councils

#### Review of determination extending compulsory treatment order

#### Hospital directions and transfer for treatment directions: revocation

#### Compulsory treatment orders and compulsion orders: cross-border transfer of patients etc.

#### Ancillary provision

2007-03-21

Adult Support and Protection (Scotland) Act 2007

original version Text at this date